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Freedom of Information R view
Freedom from information
Sigmund Freud’s name is scheiss in all the most fashion­
able intellectual circles nowadays, but very few challenge
his notion of the unconscious error. How could they, when
the phrase Freudian slip has entered the vernacular and
comedians play with it, as in, ‘your Freudian slip is
showing?’ Just as the unconscious slip is an index of
what is really on your mind, so it is particularly apt that
the collective attitude of government to an underpinning
piece of modem democracy — freedom of information
legislation — is given away by its own hand.
Various cynics and commentators have labelled it the
Freedom FROM Information Act, but it was only when the
1994 Sydney Yellow Pages actually listed the New South
Wales legislation as the Freedom From Information Act
that Freud’s ghost was heard chuckling deep within the
bureaucratic machine.
Similarly, just as Freud recognised the meaning of
jokes beyond a good bellylaugh, so the Yellow Pages
gremlin is a signifier of a deeper problem besetting
contemporary Australian democracy. We have had a
federal Fol Act for nearly 14 years and during that time
all States and the Australian Capital Territory have en­
acted Fol legislation. The Northern Territory is the excep­
tion, although it does have a voluntary information access
code for its bureaucrats.
Politicians of all hues proclaim its importance to a
liberal democracy. As recently as the federal election
campaign, the then shadow Attorney-General, Amanda
Vanstone, trumpeted its virtues in the Liberal-National
Party coalition’s law and order policy, describing it as a
‘crucial means by which the government and the bu­
reaucracy are directly accountable to individuals affected
by their actions’. Governments proudly point to the
healthy number of people who use Fol legislation —
nearly 36,000 requests were processed by federal agen­
cies in 1994-95 — and editorial writers in our daily
newspapers periodically speak out against any apparent
erosion of the Act’s power.
This is all an elaborate sleight of hand. I’ve come to
the conclusion, after a decade as a journalist using and
writing about freedom of information, that as it stands we
would all be better off without Fol Acts. At least then we
wouldn’t be kidding ourselves, and allowing successive
governments to get away with paying lip service to no­
tions of accountability and participatory decision making.
At least then we would be able to see the true level of
scrutiny governments allow and start agitating for it to be
increased.
At the moment, no one is saying this. Not the govern­
ments who know that by having Fol legislation on the
statute books they look like the good guys. Not the
opposition politicians; or not too loudly anyway, because
they know that eventually they will gain office and then
they would be getting hell from the opposition. Not the
media either, because the vast majority of journalists
never use the Act, and those that do have largely taken
the view that it is better to have weak freedom of infor­
mation legislation than none at all. Nor the legal fraternity,
or not so that anyone has ever taken much notice be­
cause their voices and submissions are always cloaked
in mind-numbing legalese. And anyway, how do you get
Fol up as an issue when it is abstract and complex? The
short answer is you can’t. Freedom of information has
never been an issue at the forefront of people’s minds.
It should be. That information is power is so often
stated as to be a truism, particularly in the 1990s when
the buzz phrase of the day is ‘information superhighway’.
The fact that the overwhelming surfeit of information is a
core problem today obscures the value of information.
You can see this quickly and clearly by looking at socie­
ties where information has been made scarce. The Polish
journalist and writer, Ryszard Kapuscinski, writes in his
most recent book, Imperium, of his journeys through
Russia and surrounding countries during the collapse of
the former Soviet Union. In village after village he meets
people who have little or no idea of what is happening
outside their own small world because neither the com­
munist regime nor the government-controlled media are
disseminating any meaningful information. Kapuscinski
notes the numbing effect of this on many of the people
he meets, who have grown up without the habit of either
questioning their rulers actions or even wanting to find
out what is going on.
Similarly, Mitchell Stephens writes in A History of
News (1988) that so deeply ingrained is the modern
acceptance of the value of abundant, accurate, timely
information that we forget just how modern a phenomonen it is. Systems for spreading news and information
were far cruder and slower 200 years ago. News of the
peace treaty struck between the English Government
and the American colonies to end the war of inde­
pendence took weeks to spread throughout the colony.
It arrived too late to prevent the Battle of New Orleans in
which 2000 soliders needlessly died.
So, if these examples allow us to see the potency of
information, what has happened to Australia’s various
Fol Acts? The answers can best be found by looking at
the way in which freedom of information came about in
this country and how it has been slowly but surely stran­
gled.
Tom Riley, an international Fol authority, has noted
that tension between governments and the people over
how much the former should tell the latter about its
activities has existed since the start of democracy.
Bureaucrats of the ‘Yes Minister’ school firmly believe
the less the public knows the better, and while most
European countries have Fol legislation now, it is not
surprising to learn that English governments continue to
stonewall its advocates.
It was the passing of freedom of information legislation
in the United States in 1966 and the growth of the
consumer rights movement there that prompted a push
for Fol legislation in Australia. It is a measure of the
entrenched assumption of secrecy within government
and bureaucracy (inherited, need I say, from England)
that it took a decade and a half before Fol became law
in Australia — December 1982.
The Act gives people an enforceable right of access
to government documents, except for those that fall into
certain specified categories. Its aims were to:
• improve the quality of decision making by removing
unnecessary secrecy;
inform people of government functions and decisions
which affect them, and of the criteria which were
applied in making those decisions.
develop political democracy by giving more opportu­
nities for public participation in decision making, and
Fr edom of Information R vi w
Freedom of Information Review
give people access to the personal records kept by
government to enable them to correct any information
which was untrue or misleading.
The importance of the principle of government ac­
countability was implicit rather than explicit in the Act. It
is really in only one of these broad aims that Fol has been
successful, and that is in giving ordinary people access
to personal documents about them that are held by
various government agencies. Indeed, approximately
nine out of every ten Fol requests in both federal and
State Acts are for personal documents held, most com­
monly, in the Departments of Social Security, Veterans
Affairs, Immigration and Ethnic Affairs and the Australian
Taxation Office. Overwhelmingly, people are granted ac­
cess to these documents, and whenever government
ministers are criticised about excessive secrecy they
pluck out global statistics showing that in the vast majority
of cases Fol requesters are successful. What could be
more democratic than that, they ask?
Well, if you couldn’t get hold of documents about
yourself held by people whose salaries you pay for
through taxation, what could you see? That it is almost
universally accepted within bureaucracy that ordinary
citizens have the right to see their own personal docu­
ments is an important improvement, but really it is the
thin end of the wedge. It is, by and large, unthreatening
for bureaucrats and governments to release a person’s
file.
Allowing people to actively take part in and scrutinise
the government decision-making process, however, is
threatening. And, of course, there is a very good reason
for this: no one, least of all government ministers, like to
see their shortcomings aired in public. It takes a rare
politician — Sir Humphrey’s term for it was ‘courageous’
— who will do this. That is the reason why over time
various checks and balances have been built into the
democratic system.
Over the past 14 years there have been numerous
examples where ordinary citizens, journalists, public in­
terest groups and opposition politicians have vigorously
used freedom of information legislation to hold govern­
ments accountable for decisions, but what has to be
faced is that from the outset there were too many obsta­
cles to acquiring documents and not only have these not
diminished since 1982, they have grown. As Paul Chad­
wick noted in his pioneering 1985 book about the legis­
lation: ‘Fol rights are like a treasure which has been put
on a pedestal. The pedestal is too high, too smooth to
climb and ringed by a wall, a moat and a swamp.’
From the outset, there have been problems for those
wanting to use the act. There are too many exemption
clauses — 20 in all — which have severely limited the
range of documents available for public scrutiny. Second,
the Act , with some exceptions, has been interpreted
conservatively by the judges of the body that hears Fol
cases — the Administrative Appeals Tribunal. Third, the
ingrained secrecy within the bureaucracy has run counter
to the spirit of openness expressed in the Fol Act. While
some bureaucrats have administered the Act fairly, it was
disturbing to read the comprehensive February 1996
review of the Act by the Australian Law Reform Commis­
sion and the Administrative Review Council which com­
plained of a still prevailing ‘secrecy regime’ within the
bureaucracy. Indeed, faced with some of the review’s
proposals for reforming Fol, various departmental sub­
missions asked that agencies ‘be given more time to
Numb r63, Jun 1996
27
embrace the Act’. This, for a piece of legislation that
predates the Hawke Labor Government!
But if many bureaucrats have been slow to clasp Fol
to their bosom, they and their political masters very
quickly saw its potential to embarrass governments. The
history of Fol in Australia is of reforming opposition
parties who have been in the political wilderness for long
periods coming to power on the promise of bringing in
strong accountability measures only to win government
and gradually wind back the Fol Acts they introduce.
Federally, although the Act was eventually introduced
by the Fraser Coalition Government, the initial impetus
came from the Whitlam Labor Government, which had
spent 23 years in opposition during the Menzies era and
beyond. In Victoria, Fol was introduced by John Cain ,
whose Labor Party had been in opposition since 1955
and who was trenchantly critical of purportedly corrupt
‘land deals’ by the Liberal Government in its final years.
In NSW, Nick Greiner brought in Fol in 1989 after
railing about endemic corruption within Neville Wran and
Barrie Unsworth’s Labor Governments of the 1970s and
1980s. In Western Australia, Fol was passed in 1992 in
the wake of the Royal Commission into WA Inc., and in
Queensland, Labor’s Wayne Goss came to power after
his party had been in opposition for 32 years. In the furore
surrounding the institutionalised corruption revealed by
Tony Fitzgerald QC in his exhaustive inquiry, Goss prom­
ised to unflinchingly implement Fitzgerald’s wide-ranging
reforms, which had included freedom of information. In
Tasmania, the independent Green MP Bob Brown seized
the opportunity of the Green-Labor accord Government
to push through Fol in the early 1990s.
This pattern over time can be seen most clearly in the
case of Victoria. John Cain was the first State premier to
introduce Fol — in 1983 — and he soon came to loathe
it, for the then Liberal-National Party opposition (as well
as several journalists) used it unrelentingly over the next
eight years to bring to light documents that scrutinised
the workings of his Government. Every time the Govern­
ment knocked back one of their requests, the Liberal-Na­
tional Party opposition would shoot off a media release
denouncing the Government’s intolerable secrecy. Sprin­
kled through these releases were phrases like ‘stench of
corruption’ and ‘open government is the cornerstone of
democracy.’ In the last year of the Cain-Kimer Govern­
ment alone, the opposition fired in 1683 Fol requests, a
25% increase on the previous year.
Then in 1992 Jeff Kennett’s Liberal-National Party
coalition steamed into power, at least partly on the
strength of the revelations they had forced under Fol
about Labor. Within a month of assuming office, the
Kennet Government had passed legislation that meant
any State Government business enterprise was totally
exempt from scrutiny under Fol and a few months later
it used its majority in both houses of parliament to ram
through changes to Fol that have rendered the Act virtu­
ally useless. Kennett’s behavior is perhaps the most
breathtaking example of what has happened in most
jurisdictions, which have seen the Fol Acts gradually
weakened.
How Fol has be n w akened
This weakening has been achieved in three main ways.
First, by charging applicants for the right to use Fol. It is
an index of the extent to which governments have man­
aged the Fol agenda that it is largely forgotten now that
use of the Act was not only free but that this concept was
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embedded in the very name of the Act. In 1986 the federal
Labor Government introduced fees and no government
that has subsequently brought in Fol has seen fit to
reverse this trend. They have all trotted out the same
accompanying rhetoric, namely that Fol should be ad­
ministered as far as possible on a ‘user-pays’ principle.
This is an nicely convenient argument. In Victoria, for
instance, Fol costs around $3 million annually to admin­
ister. Compare that with the $75 million spent each year
by government departments providing information bro­
chures, booklets etc. to the public. As Paul Chadwick
says, Fol is by definition raw, unprocessed documents
that individuals specifically want to see. Government
brochures, on the other hand, tell people only what
governments want people to know— whether they asked
for the documents or not.
But it costs $30 to make an Fol request, $40 to ask for
an unfavorable decision to be internally reviewed and a
further $300 to appeal to the Administrative Appeals
Tribunal. Then there are legal costs if the applicant
wishes to be represented and even more costs if further
appeals are necessary. At the end of all this the applicant
could well not even gain access to the documents. With
the exception of news media companies and political
parties (in opposition), few can afford such outlays, and
even these two groups do not have unlimited funds.
Governments, by contrast, seem to feel no compunction
about fighting Fol cases all the way to the High Court.
Second, these champions of reform have widened
even further the already gaping exemption clauses. The
favorite one to attack is the Cabinet exemption, which
exempts from public access any document that has been
prepared for Cabinet submission or which would reveal
the deliberations of Cabinet. It is one of the few exemp­
tion clauses which covers a class of documents and
which cannot be overturned by applying a public interest
test — that is, is there an overriding public interest in
releasing these documents? — because of the principle
of Cabinet solidarity that is enshrined in the Westminster
system. Cabinet discussions will only be free and frank
if they are protected from public access. This may be fair
enough, although some question the seriousness with
which some politicians treat Cabinet solidarity when they
will leak confidential material to journalists when it suits
them. Be that as it may, one sure way of withholding
documents from the public gaze is by working them into
the Cabinet process and by widening the Cabinet exemp­
tion to include not just specifically prepared Cabinet
documents but any document that is seen by Cabinet.
Already, Dr Spencer Zifcak, a legal academic at LaTrobe
University, believes such tampering with the Cabinet
exemption seriously undermines the Fol Act’s validity.
This is precisely what the Kennett Government in Victoria
has done and the Goss Labor Government did in
Queensland within three years of bringing Fol to the
Sunshine State.
The third means by which Fol has been diminished
has been the gradual leaking away of bodies and agen­
cies which are covered by the Act. From the start intelli­
gence agencies such as ASIO and ASIS have been
exempt from public scrutiny, but increasingly govern­
ments have passed separate legislation to put specific
agencies beyond the reach of Fol. In Victoria, for in­
stance, the Kennett Government has placed a number of
government business enterprises outside Fol’s orbit, in­
cluding the Australian Grand Prix Corporation.
Fr
dom of Information R view
At the same time, the trend in government during the
late 1980s and early 1990s to put various government
agencies on a business footing or to privatise them
altogether has meant a sizeable and growing proportion
of government is no longer covered by Fol. Nobody is
quite sure how much. The Australian Law Reform Com­
mission’s 1996 review of the Fol Act provided a list of
government business enterprises but said “there is cur­
rently no general rule or policy governing application of
the Fol Act to GBEs.’ Among those that are completely
exempt are: Australian Defence Industries Ltd; Avalon
Airports Geelong Pty Ltd; Qantas Airways Ltd; Common­
wealth Bank of Australia; ANL Ltd; Australian Industry
Development Corporation; Australian National Railways
Commission, and the Pipeline Authority. Others, such as
Telstra and the Australian Postal Corporation are largely
exempt.
Now, the argument put forward by these government
enterprises is that because they are operating in the
public marketplace it would disadvantage them to be
subject to Fol (they say their business competitors could
gain access to commercially sensitive material), but
when will it stop? To what extent is exposure to private
competition of these enterprises being monitored and to
what extent are they using this rhetoric to escape scrutiny
under Fol? Have they been totally privatised? That is, do
they not depend at all on taxpayers’ money, because if
they do, or if they are able to gain commercial credence
from the solidity associated with being part of the Gov­
ernment, shouldn’t they retain some measures of public
accountability?
The Australian Law Reform Commission and the Ad­
ministrative Review Council’s thorough 18-month review
of the federal Fol Act was tabled just days before Paul
Keating announced the 2 March election. Among its 106
recommendations were many aimed at strengthening
Fol, such as appointing an Fol Commissioner to oversee
adherence to the Act, reducing the number of exemp­
tions, making the Act’s aims more aggressively pro-dis­
closure and capping Fol fees and charges. With Labor’s
demise, the report is now waiting the attention of the new
Liberal-National Party Coalition Government, which had
at the time of writing not formally responded.
If the progress, or rather regression, of freedom of
information in Australia over the past 14 years is any
guide, don’t hold your breath. As Tony Fitzgerald re­
marked in his report on corruption in Queensland, ‘The
importance of Fol legislation lies in the principle it es­
pouses, and in its ability to provide information to the
public and to parliament. It has already been used effec­
tively for this purpose in other parliaments. Its potential
to make administrators accountable and keep voters and
parliament informed are well understood by its support­
ers,’ and, he adds, with judicial even-handedness, by its
‘enemies’.
M ATTHEW RICKETSO N
Matthew Ricketson is a freelance journalist and senior lecturer in
journalism at Royal Melbourne Institute of Technology.
Fr edom of Information R vi w